State Consumer Disputes Redressal Commission
Kanav Jindal vs Pathankot Improvement Trust And Ors. on 15 April, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.168 of 2021
Date of institution : 28.04.2021
Reserved On : 11.03.2024
Date of decision : 15.04.2024
Kanav Jindal aged 26 years son of Sh. Sunil Jindal, Resident of Lane
No.4, H.No.BXII 106, Cinema Road, Batala, District Gurdaspur.
....Appellant/Complainant
Versus
1. Improvement Trust, Pathankot, through its Chairman, Patel
Chowk, Tehsil and District Pathankot, Punjab.
2. Executive Officer, Improvement Trust, Pathankot, Patel Chowk,
Tehsil and District Pathankot, Punjab.
....Respondents/OPs
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 19.03.2021 passed by the
District Consumer Disputes Redressal
Commission, Gurdaspur.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:-
For the Appellant : None
For the Respondent : Sh. Neeraj Sharma, Advocate.
First Appeal No.168 of 2021 2
JUSTICE DAYA CHAUDHARY, PRESIDENT
The present Appeal has been filed by the
Appellant/Complainant Kanav Jindal under Section 41 of the Consumer Protection Act, 2019 being aggrieved by the order dated 19.03.2021 passed by the District Consumer Disputes Redressal Commission, Gurdaspur (in short, "the District Commission"), whereby the Complaint i.e. CC No.75 of 2021 filed by him had been dismissed.
2. It would be apposite to mention here that hereinafter the parties will be referred, as had been arrayed before the District Commission.
3. Briefly, the facts of the case as made out by the Respondent/Complainant in the Complaint filed by him before the District Commission are that he had applied for allotment of a MIG Flat under the MIG Multistoried Flats Self-financing Scheme at Jalandhar- Jammu bypass Road, Pathankot in the month of October, 2010. The Appellant/Complainant had participated in the process of auction and remained successful. Thereafter, Flat No.204-A, Block-A, 2nd Floor measuring 1015 sq.ft. was allotted to him. As per the policy of the OPs, 10% of the total sale consideration i.e. ₹2,08,000/- was required to be paid at the time of draw and the same was deposited. Further, the Complainant had deposited the entire amount of ₹18,87,688/- vide Demand Draft dated 10.02.2021, which was duly accepted by the OPs against proper receipt.
First Appeal No.168 of 2021 3
4. Further, it was mentioned in the Complaint that the OPs had failed to deliver the possession of the Flat and the basic amenities/facilities as promised were also not available at the spot in- spite of passing of a long period since the date of booking of the Flat. Earlier, the Complainant had filed the Complaint before the District Commission, which was partly allowed vide order dated 20.07.2018 by directing the OPs to expedite handing over of the possession of the Flat in dispute complete in all respects with all the promised infrastructure latest by 31.10.2018 to the Complainant and also to pay an amount of ₹10,000/- towards compensation and ₹5,000/- towards litigation expenses within a period of 30 days from the date of receipt of the copy of the order. The OPs had failed to comply with the said order dated 20.07.2018 and the Complainant had to file the Execution Application before the District Commission, which was still pending.
5. Thereafter, the Complainant had filed the 2nd Complaint i.e. CC No.75 of 2021 for issuance of directions to the OPs to pay interest at the rate of 18% per annum on the amount so deposited by him i.e. ₹2,08,000/- on 19.11.2010 and ₹18,74,688/- on 11.02.2011 totaling ₹84,67,671.
6. Said Complaint filed by the Appellant/Complainant was dismissed by the District Commission at the admission stage vide order dated 19.03.2021. The relevant portion of said order dated First Appeal No.168 of 2021 4 19.03.2021 passed by the District Commission as mentioned in Paras- 3 to 5 is reproduced as under:
" 3. Undoubtedly, the Complainant deposited the amount for allotment of MIG Flat and the same was allotted. Complainant for handing over the possession and providing facilities/amenities has already been decided. Execution for compliance of the order is also pending.
4. Now the Complainant is demanding interest on the same amount @ 18% P.A. If by the passage of time, value of the amount has come down and the prices have hiked, on the other hand, value of the Flat has also gone high. As such, the Complainant cannot claim interest on the said amount. Moreover, when the Complaint qua this very Flat has already been decided and execution is pending, now the Complainant is debarred from filing the second Complaint for this very Flat.
5. Hence, in view of the above discussion, this Complaint does not lie and the same is dismissed."
7. Said order dated 19.03.2021 passed by the District Commission has been challenged by the Appellant/Complainant by way of filing the present Appeal by raising a number of arguments.
8. Notice of the Appeal was issued to the Respondents/OPs and they had appeared through counsel. However, the Counsel for the Appellant/Complainant had appeared only on some of the dates but subsequently neither the Counsel appeared nor the Appellant/Complainant had appeared on a number of occasions as well as at the time of final arguments. However, the written arguments have been filed by both the parties.
First Appeal No.168 of 2021 5
9. It has been mentioned in the written arguments submitted on behalf of the Appellant/Complainant that the finding of the District Commission that the Complainant was estopped from filing the 2nd Complaint for the same dispute is liable to be set aside, as there was no dispute with regard to the interest on the amount so deposited by the Complainant in the earlier Complaint. The cause of action for filing 2nd Complaint had arisen only after the expiry of the period of due date of delivery of possession of the Flat i.e. 31.10.2018 and as the impugned order is liable to be set aside.
10. Mr. Neeraj Sharma, learned counsel for the Respondents/OPs has submitted that earlier the Complaint filed by the Appellant/Complainant on the same cause of action had already been decided by the District Commission vide order dated 20.07.2018. The Complainant had also filed the Execution Application for compliance of said order, which was still pending before the District Commission. Thereafter, the Complainant had filed the 2nd Complaint on the same cause of action, which was not maintainable as the earlier Complaint had been disposed off on merits. The District Commission had rightly dismissed the 2nd Complaint filed by him and the Appeal is also liable to be dismissed.
11. We have heard the arguments raised by learned counsel for the Respondents/OPs. We have also carefully perused the written arguments submitted on behalf of both the parties, impugned order First Appeal No.168 of 2021 6 passed by the District Commission and all other relevant documents available on the file.
12. Admittedly, the Complainant had earlier filed a Complaint i.e. CC No.81 of 2018 before the District Commission with the prayer for issuance of directions to the OPs to deliver the possession of the Flat and also to pay the compensation of ₹2 lac along with interest including damages for causing mental agony and harassment to him. Said Complaint was partly allowed by the District Commission vide order dated 20.07.2018. The relevant portion of said order dated 20.07.2018 as mentioned in Para-8 is reproduced as under:
"8. In the light of the all above, we partly allow the present Complaint and thus ORDER the opposite party (Improvement Trust authorities) to expedite handing over of the possession of the 'Flat' (in question) complete in all respects with all the promised infrastructure facilities (latest by 31.10.2018) to the Complainant besides to pay him Rs.10,000/- as compensation for the delay/ harassment caused and Rs 5,000/- as cost of present litigation within 30 days of the receipt of the copy of these orders failing which proceedings u/s 27 CPA shall be initiated against the OP."
13. The Complainant had also filed the Execution Application before the District Commission for compliance of said order dated 20.07.2018, which is still pending. Thereafter, the Complainant had filed the 2nd Complaint i.e. CC No.75 of 2021 on the same cause of action with the prayer for issuance of directions to the OPs to pay interest at the rate of 18% per annum on the amount so deposited by him i.e. ₹2,08,000/- on 19.11.2010 and ₹18,74,688/- on 11.02.2011 First Appeal No.168 of 2021 7 totaling ₹84,67,671. The 2nd Complaint was dismissed by the District Commission at the admission stage vide impugned order dated 19.03.2021.
14. Once the previous Complaint filed by the Complainant, wherein same issue was involved, was decided by the District Commission on merits vide order dated 20.07.2018 and the Execution Application for compliance of said order is still pending before the District Commission, the 2nd Complaint filed by the Complainant on the same cause of action was clearly hit by the principle of Res judicata.
15. Section 11 of the Code of Civil Procedure (CPC) deals with the principle of Res judicata, which is reproduced as under:
"No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
16. The Hon'ble Supreme Court in the case of M. Nagabhushana (supra) has elaborately discussed the principle of res judicata and constructive res judicata. The relevant portion of said judgment is reproduced as under:
"12. We find that disregarding the aforesaid clear finding of this Court, the Appellant, on identical issues, further filed a new writ petition out of which the present Appeal arises. That writ petition, as noted above, was rejected both by the learned Single Judge and by the Division Bench in clear terms.
13. It is obvious that such a litigative adventure by the present Appellant is clearly against the principles of Res Judicata as First Appeal No.168 of 2021 8 well as principles of Constructive Res Judicata and principles analogous thereto.
14. The principles of Res Judicata are of universal application as it is based on two age old principles, namely, 'interest reipublicae ut sit finis litium' which means that it is in the interest of the State that there should be an end to litigation and the other principle is 'nemo debet his ve ari, si constet curiae quod sit pro un aet eademn cause' meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of Res Judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should forever set the controversy at rest.
15. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of Res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of Res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties.
16. Justice Tek Chand delivering the unanimous Full Bench decision in the case of Mussammat Lachhmi Vs. Mussammat Bhulli (ILR Lahore Vol.VIII 384) traced the history of this doctrine both in Hindu and Mohammedan jurisprudence as follows:-
"In the Mitakshra (Book II, Chap. I, Section V, verse 5) one of the four kinds of effective answers to a suit is "a plea by former judgment" and in verse 10, Katyayana is quoted as laying down that "one against whom a judgment had formerly been given, if he bring forward the matter again, must be answered by a plea of Purva Nyaya or former judgment" (Macnaughten and Colebrooke's translation, page 22).
The doctrine, however, seems to have been recognized much earlier in Hindu Jurisprudence, judging from the fact that both the Smriti Chandrika (Mysore Edition, pages 97-
98) and the Virmitrodaya (Vidya-Sagar Edition, page 77) base the defence of Prang Nyaya (=former decision) on the following text of the ancient lawgiver Harita, who is believed by some Orientalists to have flourished in the 9th Century B.C. and whose Smriti is now extant only in fragments:-First Appeal No.168 of 2021 9
"The plaintiff should be nonsuited if the defendant avers: 'in this very affair, there was litigation between him and myself previously,' and it is found that the plaintiff had lost his case".
There are texts of Prasara (Bengal Asiatic Society Edition, page
56) and of the Mayukha (Kane's Edition, page 15) to the same effect.
Among Muhammadan law-givers similar effect was given to the plea of "Niza-i-munfasla" or "Amar Mania taqrir mukhalif." Under Roman Law, as administered by the Proetors' Courts, a defendant could repel the plaintiff's claim by means of 'exceptio rei judicatoe" or plea of former judgment. The subject received considerable attention at the hands of Ruman jurists and as stated in Roby's Roman Private Law (Vol.II, page 338) the general principle recognised was that "one suit and one decision was enough for any single dispute" and that "a matter once brought to trial should not be tried except, of course, by way of Appeal". (Page 391-392 of the report)
17. The learned Judge also noted that in British India the rule of Res Judicata was first introduced by Section 16 of the Bengal Regulation, III of 1973 which prohibited the Zilla and City Courts from entertaining any cause which, from the production of a former decree or the record of the Court, appears to have been heard and determined by any Judge or any Superintendent of a Court having competent jurisdiction. The learned Judge found that the earliest legislative attempt at codification of the law on the subject was made in 1859, when the first Civil Procedure Code was enacted, whereunder Section 2 of the Code barred every Court from taking cognizance of suits which, on the same cause of action, have been heard and determined by a Court of competent jurisdiction. The learned Judge opined, and in our view rightly, that this was partial recognition of the English rule in so far as it embodied the principles relating to Estoppel by judgment or Estopel by record.
18. Thereafter, when the Code was again revised in 1877, the operation of the rule was extended in Section 13 and the bar was no longer confined to the retrial of a dispute relating to the same cause of action but the prohibition was extended against reagitating an issue, which had been heard and finally decided between the same parties in a former suit by a competent court. The learned Judge also noted that before the principle assumed its present form in Section 11 of the Code of 1908, the Section was expanded twice. However, the learned Judge noted that Section 11 is not exhaustive of the law on the subject.
19. It is nobody's case that the Appellant did not know the contents of FWA. From this it follows that it was open to the Appellant to question, in the previous proceeding filed by it, that his land which was acquired was not included in the FWA. No reasonable explanation was offered by the Appellant to indicate why he had not raised this issue. Therefore, in our judgment, such an issue cannot be raised in this proceeding in view of the doctrine of Constructive Res Judicata.
First Appeal No.168 of 2021 10
20. It may be noted in this context that while applying the principles of Res Judicata the Court should not be hampered by any technical rules of interpretation. It has been very categorically opined by Sir Lawrence Jenkins that "the application of the rule by Courts in India should be influenced by no technical considerations of form but by matter of substance within the limits allowed by law". [See Sheoparsan Singh Vs. Rammanandan Prasad Singh, (1916) 1 I.L.R. 43 Cal. 694 at page 706 (P.C.)].
21. Therefore, any proceeding which has been initiated in breach of the principle of Res Judicata is prima-facie a proceeding which has been initiated in abuse of the process of Court.
22. A Constitution Bench of this Court in Devilal Modi Vs. Sales Tax Officer, Ratlam & Ors. - AIR 1965 SC 1150, has explained this principle in very clear terms:
"But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Art. 226, cannot be answered merely in the light of the significance and importance of the citizens' fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice, vide : Daryao Vs. State of U.P., 1962-1 SCR 575; (AIR 1961 SC 1457)."
23. This Court in All India Manufacturers Organisation (supra) explained in clear terms that principle behind the doctrine of Res Judicata is to prevent an abuse of the process of Court.
24. In explaining the said principle the Bench in All India Manufacturers Organisation (supra) relied on the following formulation of Lord Justice Somervell in Greenhalgh Vs. Mallard - (1947) 2 All ER 255 (CA):
"I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them."
25. The Bench also noted that the judgment of the Court of Appeal in "Greenhalgh" was approved by this Court in State of U.P. Vs. Nawab Hussain - (1977) 2 SCC 806 at page 809, para 4. First Appeal No.168 of 2021 11
26. Following all these principles a Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. Vs. State of Maharashtra - (1990) 2 SCC 715 laid down the following principle:
"......an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata."
27. In view of such authoritative pronouncement of the Constitution Bench of this Court, there can be no doubt that the principles of Constructive Res Judicata, as explained in explanation IV to Section 11 of the CPC, are also applicable to writ petitions.
28. Thus, the attempt to re-argue the case which has been finally decided by the Court of last resort is a clear abuse of process of the Court, regardless of the principles of Res Judicata, as has been held by this Court in K.K. Modi Vs. K.N. Modi and Ors. - (1998) 3 SCC 573. In paragraph 44 of the report, this principle has been very lucidly discussed by this Court and the relevant portions whereof are extracted below:
"One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata..."
17. In view of the law as laid down by the Hon'ble Supreme Court in the aforesaid judgment, the principle of res judicata is not only confined to the issues decided earlier but also the issues or facts, which had been clearly part of the subject-matter of the previous litigation and could have been raised earlier, are covered thereunder. Filing of the 2nd Complaint on the same cause of action is an abuse of the process of the Court. In case, the Court fails to notice such like legal and material aspects, there would not be any end of the litigation. First Appeal No.168 of 2021 12 Therefore, the 2nd Complaint filed by the Complainant is clearly barred by the principle of Res judicata and Constructive Res judicata as discussed above.
18. Further, the 2nd Complaint filed by the Complainant was also barred by limitation, as it was filed before the District Commission on 10.03.2021 i.e. after a period of more than 2 years and half years from the date of order dated 20.07.2018 passed in the previous Complaint. As per Section 69 of the Act, the Complaint can be filed within a period of 2 years from the date of accrual of the cause of action. The Hon'ble Supreme Court in the case of State Bank of India v. M/s B.S. Agricultural Industries 2009 (5) SCC 121 (SC) had also held that the Complaint was time barred, as it was filed after a period of 3 years from the date of accrual of the cause of action, whereas as per the provisions of the Act, it could have been filed within period of 2 years. Moreover, the Complainant had also not filed any Appeal to challenge the order dated 20.07.2018 passed in the previous/earlier Complaint and as such said order dated 20.07.2018 passed by the District Commission had attained finality.
19. In view of the facts and circumstances as well as the law laid down by the Hon'ble Supreme Court, it is apparent that the 2nd Complaint filed by the Complainant on the same cause of action was clearly barred by the principles of Res judicata and Constructive Res judicata and it was also barred by limitation. The impugned order First Appeal No.168 of 2021 13 dated 19.03.2021 passed by the District Commission is based on proper appreciation of the facts and the law as applicable and no interference is required.
20. Accordingly, finding no merits in the contentions raised by learned counsel for the Appellant/Complainant, the Appeal being without any merit is hereby dismissed and the impugned order dated 19.03.2021 passed by the District Commission is upheld.
21. Since the main case has been disposed off, so all the pending Miscellaneous Applications, if any, are accordingly disposed off.
22. The Appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER April 15, 2024.
(Gurmeet S)